Filed 4/13/15 P. v. Farmer CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.

KENNETH AN THONY FARMER,
Defendant and Appellant. B250695
(Los Angeles County Super. Ct. No. MA057202)

APPEAL from a judgment of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Reversed and remanded with directions.

Ann Krausz, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Chung Mar and Jessica C. Owen, Deputy Attorneys General, for Plaintiff and Respondent.

_____________ ________2

Appellant Kenneth Anthony Farmer appeals from the judgment entered following his conviction by jury of petty theft with prior theft

- related conviction s , with admissions he suffered a prior felony conviction and five prior felony convictions for w hich he served separate prison terms. (Pen. Code, §§ 666, subd. (a), 667, subd. (d), & 667.5, subd. (b).) The court sentenced appellant to prison for seven years. We reverse the judgment and remand the matter with directions.
FACTUAL SUMMARY
1. Appel lant’s Wheeler Motion Based on Race, and Objection Based on Gender. 1 During jury selection, the prosecutor’s first five peremptory challenges to prospective jurors (hereafter, jurors) were to three women, i.e., to Jurors E3431, G0166, then C1613, then two men. After the challenge to the second of the two men (hereafter, the second man), appellant, outside the presence of the jury, objected to the challenges to Juror C1613, and the second man, on the ground they were challenged because they were
African

- Ame ricans. The court, discussing Juror C1613 and the second man, noted, inter alia, both were African

- Americans and Juror C1613 was “in fami ly services at a funeral home.” The court concluded appellant had made a prima facie showing the prosecutor had
challe nged Juror C1613 and the second man based on group bias predicated on race. The court invited the prosecutor to tender race

- neutral justifications for the challenges. The prosecutor, first discussing Juror C1613, indicated Juror C1613 was a counselor at a county funeral home and the prosecutor did not like jurors associated with social services, because such jurors might be sympathetic to the defense

.

1 The facts pertaining to the present offense are not pertinent to this appeal; we simply note the record reflects that on August 22, 2012, appellant committed the present offense.3

The prosecutor then stated, “The second thing that went into it was a gender composition on the jury. Yo u’ll notice that she’s not the only one, there have been a few at least three if not all four of my challenges have been to females [ 2 ] that’s because I’m trying for my own reasons, I want to have a certain gender composition on the jury.” Appellant’s coun sel then stated, “Raise new objection on that as well.” The court did not
then comment, or rule , up on the objection and appellant did not secure a ruling on it. 3 After appellant’s objection, the prosecutor stated, “I like to have a certain balance of juro rs and,

. . . whether it’s

-- I’m not kicking her because she’s a female, but I like to have a certain breakdown of jurors as it relates to it. That’s one thing that went into it. [¶] And then timely [ sic ], there were just other jurors that I like bette r. And,

. . . [another juror] was someone I liked better, and there’s a number of people within the pool that I like better, and that I may want to try to get for that reason.” The prosecutor then
tendered a race

- neutral justification as to the second ma n. Based on the prosecutor’s tendered justifications, the court found the prosecutor did not challenge Juror C1613 or the second man on the ground of group bias. The court noted Juror C1613 was a counselor and, regardless of her capacity, counselors usual ly were more kind and sympathetic. The court treated appellant’s objection to the prosecutor’s challenges to Juror C1613 and the second man
, on the ground of race
, as a Wheeler motion and denied it. 4

2 As indicated, up to this po int the prosecutor had exercised five, not four, challenges, onl y three of which were to women.

3 Appellant’s objection could be construed as a motion pursuant to People v. Wheeler (1978) 22 Cal.3d 258 ( Wheeler ) based on gender. However, because the tria l court did not rule on the objection and because this case can be resolved based on the later Wheeler motions based on gender that the trial court denied, we do not discuss the validity of appellant’s objection.

4 The validity of the trial court’s ruling on appellant’s Wheeler motion based on race is not at issue in this appeal.4

2. Appellant’s First Wheeler Motion Based on Gender.
A ppellant later, still outside the presence of the jury, objected the prosecutor had challenged Juror C1613 on the basis of gender. The court then stated, “. . . that is now untimely because the last juror that was excused was a male [ 5 ] and we only have tw o jurors that are excused, one male and one female. [ 6 ] It may be more timely in the future, but at this point it’s untimely as I see it on its face because of the composition of the two that were excused and the arguments that were made.”
The court later stated, “I’ll a ccept the defense’s arguments, I’ll also accept the People’s record. I have reviewed and denied the motion [i.e., the Wheeler motion based on race], and I’m going to find untimely the additional Wheeler motion on ge nder.” (Italics added.)
3. Appellant’s Second Wheeler Motion Based on Gender. The prosecutor subsequently, in open court, exercised peremptory challenges as to four jurors, i.e., two men, then two women. After the challenge to the first man but
before the challenge to the secon d man , the p rosecutor accepted the panel. The two

women were Juror V9212, then Juror R3715. After the prosecutor challenged Juror R3715, appellant, outside the presence of the jury, made a Wheeler motion and stated, “[the prosecutor] is kicking the women off in the panel. He did make a comment during our previous [ Batson v. Kentucky (1986)
476 U.S. 79 [90 L.Ed.2d 69] ( Batson ) ] objection, and with regards to getting rid of women on the panel. Since then I’ve paid attention to the jurors that were dismisse d. One woman was dismissed, I made no objection. Then the last two witnesses [ sic ] that were dismissed were women.”

5 This was an apparent reference to the previously mentioned second ma n challenged by the prosecutor.

6 Th is comment by the trial court was unclear. As indicated, up to this po int there were five (not two) jurors excused as a result of challenges by the prosecutor, i.e., three women and two men (not merely one man and one woman). One man (the second man) and one of the women (Juror C1613) were African

- Americans.5

The court noted 18 of the 36 jurors in the panel were women, and five of the nine persons challenged by the prosecutor were women, “[s]o i t’s nearly a split between male and female.” The court also noted the prosecuto r had accepted the panel once. The court recounted background information as to each of the total of five women the prosecutor previously had challenged, i.e., Jurors E3431, G0 166, C1613, V9212, and R3715. The court stated it did not find a prima facie case had been made. Fairly read,
the record reflects the trial court concluded appellant had failed to show a “strong
likelihood” the challenges were made because of group bias; therefore, appellant had failed to overcome the presumption the prosecutor’s challenges were constitutional

. The court thus implicitly denied appellant’s second Wheeler motion based on gender. The court indicated it was basing its above mentioned conclus ion on the following factors as to the five women. Juror E3431 had prior criminal jury experience, but the court did not know how that affected matters. She was a nurse, which could cause the prosecutor to be concerned about her sympathies. Nurses tende d to be more nurturing. Juror G0166’s father had been convicted of molestation and her husband was a law
enforcement officer. One could conclude she had biases fo r and against law
enforcement. Juror C1613 was the previously discussed counselor who could be sympathetic to the defense. Juror V9212’s mother had been the victim of home invasion robbery. 7 The court stated, “I think that would be a concern that she may have some animosity one way or another either towards law enforcement, even though she deni ed that, or because she’s [ sic ] been the victim of a crime, that may create a concern for the prosecution.” Juror
R3715’s brother

- in

- law had been convicted of drug

- and theft

- related crimes, and Juror
R3715 had been the victim of a crime similar to the pr esent alleged offense, which could
be a matter of concern.

7 During voir dire, Juror V9212 testified her mother was beaten and robbed in her home, her mother called law enforcement, and the culprits were caught and prosecuted

. Juror V9212 also testified she thought law enforcement handled the matter appropriately and the syste m worked for her “as best [as] it was able.”6

The court then indicated that, “even though I have made no prima facie showing,” and the court was not requesting the prosecutor to state his reasons for exercising the challenges at issue, the co urt would allow the prosecutor to state his reasons for them if the prosecutor voluntarily wanted to do so. The prosecutor then indicated as follows. Juror C1613 (the counselor) already had
been discussed. As to Juror E 3431, “ [ a ] ctually that one didn’t have anything to do with the RN, she just she looked like my son’s teacher that I didn’t like in preschool, and when I was looking at her, we were making eye contact, I never addressed her because there was something about her that I didn’t like from the v ery beginning. So I just kind of stayed away from her. I knew that I wasn’t going anywhere with her eventually.” As to Juror G0166, the prosecutor stated, “she sat quietly, she didn’t really seem engaged in the proceedings,

. . . I guess it’s kind of a [ double

- edged ] sword. I don’t want someone raising their hand all the time either, but she kind of sat and where the questions were opened up to

. . . the general audience, she just kind of sat there. And as I was looking at her, as I was scanning the jur ors, there was just kind of nothing really registering with her as I was discussing it, so I didn’t have a good feeling about her.” The prosecutor stated Juror V9212 “. . . from the very first moment she spoke showed a very loud voice and I didn’t even tur n around, I heard her talking. It was almost like her voice projected, and even some of the things that she said which I did note at the time, I kind of quickly had the . . . feeling that this was a woman who I didn’t really
feel a connection with. She w as, . . . a homemaker, student, and again at her age I was a little concerned with that aspect of it, . . . but more it was kind of a general feeling from the moment she opened her mouth and started speaking, it was just kind of a piercing, grating voice, so I got rid of her because I thought it would not [be] a good mix with other jurors should it get to that level.”7

As to Juror R3715, the prosecutor stated, “ [ t ] hat was just simply based on the fact
that her brother had been convicted of a theft

- related co nviction [ sic ]. And with this being the same situation, . . . I understand she said that he was treated fairly, but I didn’t want to keep her for that purpose.” The court later stated, “Record has been made. The
Wheeler motion had been denied.” (Itali cs added.) Later, the parties accepted the panel and an alternate juror, and the jury and alternate juror were sworn.
ISSUE Appellant claims the trial court erroneously denied his two Wheeler motions that alleg ed the prosecutor impermissibly exercised pe remptory challenges to women based on gender.
DISCUSSION Appellant claims as previously indicated. We agree. In Wheeler
, supra, 22 Cal.3d 258, our Supreme Court stated, “[w]e conclude that the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross

- section of the community under article I, section 16, of the California Constitution.” ( Wheeler
, at pp. 276

- 277.) Batson reached the same
conclusion bas ed on the federal equal protection clause. ( People v. Huggins (2006)
38 Cal.4th 175, 226.) When a defendant asserts at trial the prosecution’s use of peremptory challenges
violates the federal Constitution because they are based on gender , the defendant m ust make out a prima facie case by showing the totality of the relevant facts gives rise to an inference of discriminatory purpose. The burden then shifts to the State to explain adequately the gender exclusion by offering permissible gender

- neutral justi fications for
the challenges . Thereafter, if a gender

- neutral explanation is tendered, the trial court must decide whether the opponent of the challenge has prove n purposeful gender
discrimination. The identical three

- step procedure applies when the chal lenge is brought under the California Constitution. ( Cf. People v. Cowan (2010) 50 Cal.4th 401, 447.) 8

8 References to Wheeler below are to Batson as well.8

Respondent concedes women are a cognizable group for purposes of Wheeler analysis. ( People v. Garceau (1993) 6 Cal.4th 140, 171; People v. Gray (2001) 87 Cal.App.4th 781, 788.) Appellant brought two Wheeler motions based on gender. The court denied the first as untimely. The court denied the second on the ground appellant did not pas s the first step, i.e., he failed to make out a prima facie case by s howing the totality of the relevant facts gave rise to an infere nce of discriminatory purpose.
We initially address the trial court’s denial of appellant’s first Wheeler motion based on gender. In People v. Gore (1993) 18 Cal. App.4th 692 ( Gore ) , the court stated , “Many cases have reiterated the statement that to be timely a Wheeler motion should be made before the jury has been sworn. [Citations.] ” ( Gore , at p. 701.) “[T]o be timely a
Wheeler objection or motion must be made, at the latest, before jury selection is completed.” ( Gore , at p. 703.) Appellant made his first Wheeler motion based on gender before the jury was sworn. Respondent concedes the trial court erred by concluding this motion was untimely. We accept the concession . We hold the trial court erred by concluding appellant’s first Wheeler motion based on gender was untimely. The remaining issue pertains to remedy. When a trial court erroneously denies a
Wheeler motion on the ground the motion is untimely, an appellate court , instead of

c ompletely reversing the conviction, may remand the matter for limited proceedings

. ( People v. Rodriguez (1996) 50 Cal.App.4th 1013, 1023

- 102 5 , 1036 ( Rodriguez ) ; Gore , supra, 18 Cal.App.4th at pp. 705

- 707.) In both Rodriguez and Gore , the defendant, after 12 jurors were sworn, made a single Wheeler motion during the selection of the alternate jurors, claiming prosecutorial challenges to certain of the 12 sworn jurors, and a certain
alternate juror ( s ) , w ere based on group bias. ( Rodriguez , at pp. 1020

- 1023 ). The trial court in each case concluded the motion was untimely as to the challenges to sworn jurors but timely as to the challenged alternate juror ( s )

. ( Id. at pp. 10 21, 1023.)9

In Gore , the trial court expressly found the defendant had made a prima fa cie case as to the challenged alternates, the trial court asked the prosecutor to explain his reasons for those challenges and, after the prosecutor complied, the trial court denied the Wheeler motion. ( Gore
, supra , 18 Cal.App.4th at pp. 698

- 699.) Gore c oncluded
, “the trial court erroneously limited defendant’s Wheeler motion to [three] challenges made during the selection of the alternate jurors, thereby foreclosing all consideration of the People’s [four] peremptory challenges to Hispanic prospective ju rors removed during the selection of the panel of 12 jurors.” ( Gore , at p. 696.) Gore stated, “the trial court should have considered the motion as to all seven challenged Hispanic prospective jurors and not limited its inquiry to only the alternate juro r selection process.” ( Id. at p. 705.)
Gore later stated, “On remand the court will necessarily reexamine the validity of the prosecutor’s reasons for challenging the three Hispanic alternate jurors in the light of the prosecutor’s reasons for challenging the four Hispanic jurors on the regular panel.
The court will exa mine ‘ the totality of the relevant facts and . . . consider all the relevant
circumstances. ’ [Citation.]” ( Id. at p. 706.) Gore remanded the matter, directing the trial court to assume ( 1) the Wheeler motion was timely as to all seven challenges and (2) the defendant had established a prima facie case of wrongful exclusions ( id. at p. 707), thus placing the burden of proof on the prosecution to justify the challenges. ( Ibid .)
In Rodrigue z , the trial court did not expressly find the defendant had made a prima
facie case as to one challenged alternate juror , but the court asked the prosecutor to explain his reasons for that challenge and, after the prosecutor complied, the trial court
denie d the Wheeler motion. ( Rodriguez
, supra, 50 Cal.App.4th at p. 1022.) The
defendant claimed the trial court erred by finding his Wheeler motion untimely as to the prosecutor’s challenges to two sworn jurors. ( Id. at pp. 1022

- 1023.) Relying in part on
Go re , Rodriguez remanded the matter to permit the trial court to determine the validity of
the prosecutor’s challenges to the two sworn jurors
, to determine whether the prosecutor’s challenges were racially neutral, and to conduct further proceedings
accordi ngly. ( Id. at p p

. 1020

- 1021, 1036.)10

In determining whether remand was appropriate, Gore and Rodriguez considered, inter alia, the period between jury voir dire and the appellate court opinion , since this would impact whether the trial court and parties wo uld be able to remember what happened during voir dire in the event of a remand

. In Gore , the period was between one and two years. ( Gore , supra, 18 Cal.App.4th at p. 706.) In Rodriguez , the period was two months short of three years. ( Rodriguez
, supra , 50 Cal.App.4th at pp. 1020 , 1025 .) In the present case, on February 28, 2013, voir dire began, the prosecutor challenged the first three women (Jurors E3431, G0166, and C1613), the court denied appellant’s first Wheeler motion based on gender as untimely , and the prosecutor challenged the fourth woman (Juror V9212). On March 4, 2013, the prosecutor challenged the fifth woman (R3715) and t he court denied appellant’s second Wheeler motion based on gender. All of these events occurred only about two years ago. The reporter’s transcript reflects the proceedings below, including voir dire, and is available for review. Under these circumstances, we conclude this matter may be remanded

. Moreover, although, Gore and Rodriguez each involved one Wheeler motion
b ased on gender while the present case involves two, this is a distinction without a
difference

. T he essence of what happened here is what happened in Gore and Rodriguez : the trial court here ruled appellant’s constitutional challenge was partially untimel y and partially timely. In the present case, on February 28, 2013, after the court invited the prosecutor to
tender race

- neutral justifications , the prosecutor began to do so by discussing Juror
C1613. The prosecutor stated, inter alia, “The second thing that went into it was a gender composition on the jury. You’ll notice that she’s not the only one, there have been a few at least three if not all four of my challenges have been to females that’s because I’m trying for my own reasons, I want to have a ce rtain gender composition on the jury.” The prosecutor miscounted the total number of his peremptory challenges up to that point

— there were (including men and women) five, not four . The prosecutor miscounted the total number of his challenges to women

— the re were three, not four . However, the11

prosecutor clearly indicated all of his challenges to women (Jurors E3431, G0166, and C1613) to that point were based on gender. It is true the prosecutor stated, “I’m not kicking [Juror C1613] because she’s a
female. ” However, the prosecutor’s credibility in making that statement was undermined by the facts (1) he made that statement only after appellant “raise[d] [ his ] new objection” ( presumably on the ground the prosecutor was impermissibly challenging the women
ba sed on gender ) , and (2) immediately after stating he was not kicking Juror C1613 because she was a female, the prosecutor stated, “I like to have a certain breakdown of jurors as it relates to it.” The fact the prosecutor challenged Juror C1613 on the gro und of gender, not as an end in itself but to affect the jury composition not only does not change the fact he challenged her, at least in part, based on gender but demonstrates he
did so , at least in part, to affect jury composition in a way that is const itutionally prohibited. We note that, after the prosecutor indicated he had challenged the three women jurors based on gender, and after appellant “raise[d] [his] new objection” to that fact, the trial court did not then comment on the fact the prosecutor effectively stated he had challenged the women on an unconstitutional basis

— gender. When appellant later made
his first Wheeler motion based on gender, the trial court denied it as untimely but did not address the fact the prosecutor effectively stated he had challenged the three women on
an unconstitutional basis. When appellant made his second Wheeler motion based on gender, the trial court discuss ed various factors leading to its decision appellant had not made a prima facie showing, but never discusse d the fact the prosecutor effectively stated he had challenged the three women on an unconstitutional basis.
We hold the trial court erred by concluding appellant did not make out a prima
facie case and therefore denying appellant’s second Wheeler motion b ased on gender.12

We further hold appellant has made out a prima facie case by showing the totality of the relevant facts gives rise to an inference 9 of discriminatory purpose.
We will remand the matter for the limited purpose of permitting the trial court to conduct a new Wheeler hearing
, during which the trial court shall assume (1) appellant ’ s second Wheeler motion was timely as to all five women (i.e., Jurors E3431, G0166, C1613, V9212, and R3715) peremptorily excluded by the prosecutor, and (2) appellan t has made out a prima facie case by showing the totality of the relevant facts gives rise to

an inference of discriminatory purpose, thereby placing the burden of proof on the prosecution to justify the exclusion of these jurors. If the trial court grant s the motion after the hearing, appellant shall be given a new trial. If the trial court denies the motion after the hearing, the judgment shall be reinstated. (See Gore , supra, 18 Cal.App.4th at

p. 707.) We express no opinion as to how the trial court should resolve the issues of whether the prosecutor offered a permissible gender

- neutral justification for a challenge
, or, if the prosecutor tendered a gender

- neutral explanation
, whether the prosecutor engaged in purposeful gender discrimination.

9 Respondent concedes the trial court, when deciding whether appellant had made out a prima facie case, used the wrong standard by deciding whether appellan t had failed to show by a “strong likelihood” the prosecutor’s challenges were based on group bias. We accept the concession and conclude the trial court erred in this respect as well.13 DISPOS ITION The judgment is reversed and the matter is remanded with directions to the trial
court to conduct a new Wheeler hearing and further proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We con cur:

EDMON, P. J.

ALDRICH, J.